Frederick v. State

• Decision Date: 15 February 2007
• Docket Number: No. 05-173.,05-173.
• Citation: 2007 WY 27,151 P.3d 1136
• Parties: Cody Lee FREDERICK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

151 P.3d 1136

2007 WY 27

Cody Lee FREDERICK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 05-173.

Supreme Court of Wyoming.

February 15, 2007.

Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender. Argument by Ms. Yoder.

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Daniel M. Fetsco, Assistant Attorney General. Argument by Mr. Fetsco.

Before VOIGT, C.J., and GOLDEN, HILL, and KITE, JJ., and PARK, D.J.

PARK, District Judge.

[¶ 1] Appellant, Cody Lee Frederick (hereinafter "Frederick"), was originally charged with one count of first-degree sexual assault. Frederick and the State agreed that he would plead guilty to a lesser charge of third-degree sexual assault and the State would recommend probation and possible deferral of the conviction. The district court rejected the agreement and entered a sentence of two to four years. In this appeal, Frederick challenges the district court's rejection of the plea agreement, the order of restitution, and the payment of public defender fees.

[¶ 2] We affirm the sentence and remand for correction of those portions of the judgment and sentence that required payment of restitution and public defender fees.

ISSUES

[¶ 3] The following issues are presented on appeal:

I. Whether imposition of sentence was proper?

II. Did the trial court err by ordering the defendant to pay restitution?

III. Did the trial court err by entering a written judgment and sentence requiring payment of public defender fees after orally waiving those fees?

FACTS

[¶ 4] On October 9, 2003, Frederick had been drinking, and after offering to drive the victim home, ended up at her apartment. There was no direct evidence as to the amount of alcohol consumed by Frederick; however, the State accepted defense counsel's representation that it was in excess of twelve beers. Frederick attempted to kiss the victim, who rebuffed him. Later, Frederick forcefully grabbed the victim and attempted to remove her clothing. He eventually succeeded in dragging the victim into her bedroom, where he held her down and sexually assaulted her.

[¶ 5] On June 14, 2004, an Information was filed charging Frederick with first-degree sexual assault, in violation of Wyo. Stat. Ann. § 6-2-302(a)(i) (LexisNexis 2003). On June 28, 2004, Frederick appeared for arraignment in district court and entered a plea of not guilty.

[¶ 6] On December 13, 2004, Frederick appeared for a change of plea. The district court advised Frederick of his rights and made the necessary inquiries required by W.R.Cr.P. 11. Frederick acknowledged that he understood his rights; that this agreement was not binding on the court; and that the plea could not be withdrawn.

[¶ 7] Frederick's counsel informed the court that the parties had reached an agreement. The precise terms of this agreement are unclear. Counsel informed the court that:

The agreement is that my client submit an Alford plea to the count. And in exchange for that, he would receive a third degree sexual assault disposition, and the sentence would be five to seven years suspended. And furthermore, Your Honor, if the PSI supports a 301 agreement, the state has agreed to agree to that.

The prosecutor added that: "The state would leave the option of 301 open pending the result of the PSR." The confusion about the agreement stems from the fact that under this statute, there is no authority for suspending a sentence.

[¶ 8] Frederick's counsel advised that this was to be an Alford plea. An Alford plea allows an individual accused of a crime to voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Counsel explained to the court that this plea was necessary because Frederick had had so much to drink on the evening in question that he did not remember what had happened. The State then offered the facts previously discussed, and Frederick agreed this was the evidence that the State could present. Because there was a possible disposition under Wyo. Stat. Ann. § 7-13-301 (LexisNexis 2005), which allows for possible dismissal of the charge if the defendant successfully completes probation, the court did not enter the plea. The court then referred Frederick to the Department of Probation and Parole for an interview for the Presentence Investigation Report (PSR).

[¶ 9] On April 18, 2005, Frederick appeared for sentencing. The judge who presided over the change of plea had accepted another judicial appointment, and a different judge imposed the sentence. The parties agreed that under Wyoming statutes, Frederick was eligible for sentencing under § 7-13-301. The victim, who had previously submitted a victim impact statement in the PSR, was present at the hearing but did not speak. Frederick indicated that he accepted responsibility, and he made a brief apology.

[¶ 10] The district court then announced that deferral under § 7-13-301 was inappropriate. The court indicated that it had reviewed the court file with the initial charge and the PSR. The court also rejected probation "because of the severity of the charge" and because the court believed that Frederick was not sincere in his acceptance of responsibility and apology. The court imposed a sentence of not less than two nor more than four years of incarceration.

[¶ 11] On May 2, 2005, Frederick's counsel argued a motion for reconsideration of sentence, reasserting that Frederick was a good candidate for treatment under § 7-13-301 or at least for probation. The district court denied the motion, stating that the physical evidence of bruising confirmed the victim's version of a nonconsensual, forcible assault; and the court continued to be skeptical of Frederick's acceptance of responsibility. The court also considered the impact of the crime on Frederick's community.

[¶ 12] Frederick asserts that he had a binding plea agreement that was improperly rejected by the district court and that the district court abused its discretion when it ordered restitution and reimbursement of public defender fees.

STANDARD OF REVIEW

[¶ 13] When a plea of guilty is entered as a result of a plea agreement, any promises made by the State must be fulfilled and whether a prosecutor has violated an alleged agreement is a question that is reviewed de novo. Spencer v. State, 2005 WY 105, ¶ 12, 118 P.3d 978, 982-983 (Wyo.2005). A plea agreement is a contract between the defendant and the State to which the general principles of contract law are applied. "When determining whether a breach of the plea agreement has occurred we: `(1) examine the nature of the promise; and (2) evaluate the promise in light of the defendant's reasonable understanding of the promise at the time the plea was entered.'" Ford v. State, 2003 WY 65, ¶ 11, 69 P.3d 407, 410 (Wyo.2003). The prosecutor "must explicitly stand by" the terms of any agreement; and if the State is unable to carry out the terms, the correct remedy is withdrawal of the plea. Ford, ¶ 18, 69 P.3d at 412. The State may not obtain the benefit of the agreement and at the same time avoid its obligations without violating either the principles of fairness or the principles of contract law. Id.

[¶ 14] The standard of review of restitution orders is confined to a search for procedural error or a clear abuse of discretion. Penner v. State, 2003 WY 143, ¶ 7, 78 P.3d 1045, 1047 (Wyo.2003). The court-ordered restitution should be supported by sufficient evidence to afford a reasonable basis for estimating the loss. Id. The restitution can be challenged only for abuse of discretion by the court. Id. "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily and capriciously." Monjaras v. State, 2006 WY 71, ¶ 8, 136 P.3d 162, 164 (Wyo.2006). Under this standard, the inquiry is whether the court's choice is reasonable. A victim impact statement is credible evidence to support an order of restitution. Penner, ¶ 7, 78 P.3d at 1047(citation omitted).

[¶ 15] There is a distinction between the standard of review of factual challenges to the amount of restitution ordered and challenges to the authority of the court to make a restitution award. Challenges to the factual basis of an award of restitution can be waived if the defendant enters into a plea agreement and then fails to object at sentencing. Penner, ¶ 7, 78 P.3d at 1047. If the defendant does not object to the amount of restitution ordered by the district court, the reviewing court must review for plain error. Id. at 1048. If the defendant challenges the authority of the district court to order restitution, then review is under a de novo statutory interpretation standard, because a court has only that authority to act which is conferred by the subject statute. Id.

DISCUSSION

Improper Sentence

[¶ 16] Frederick contends that the district court improperly imposed a sentence of a term of years instead of either deferring the sentence under § 7-13-301 or placing him on probation. Frederick argues that the district court did not follow the mandates of W.R.Cr.P. 11(e) because he was not told that the plea could not be withdrawn, and because he was not allowed to withdraw the plea when the recommendation was rejected by the district court. He also argues that the district court committed error by imposing a sentence that was inconsistent with the charge of third-degree sexual assault; that defense counsel was ineffective for failing to object; and, finally, that the State violated...